90. Application to set aside sale on ground of irregularity or fraud.- (1) Where any immovable property has been sold in execution of a decree, the decree holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it. (2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. (3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation : The mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule. HIGH COURT AMENDMENTS Allahabad.- Substitute the following for proviso: (1) Renumber Rule 90 as sub-rule (1) of Rule 90. (2) Substitute the following for the proviso; “Provided that no application to set aside a sale shall be entertained— (a) upon any ground which could have been taken by the applicant on or before the date on which the sale proclamation was drawn up; and (b) unless the applicant deposits such amount not exceeding twelve and half per cent of the sum realised by the sale or furnishes such security as the Court may in its discretion fix except when the Court for reasons to be recorded dispenses with the requirements of this clause: Provided further that no sale shall be set aside on the grounds of irregularity or fraud unless upon the facts proved the Court is satisfied, that the applicant has sustantial injury by reason of such irregularity or fraud.” (3) Add as sub-rule (2): “(2) Where such application is rejected the Court may award such costs to the D.H. or A.P. or both as it may deem fit and such costs shall be first charged upon the security referred to in clause (b) of the proviso, if any.” (1 .6.1957). Andhra Pradesh.- (i) After the first para and before proviso, insert the following: “Provided that the Court may after giving notice to the applicant call upon him before admitting the application either to furnish security to the satisfaction of the Court for an amount equal to that mentioned in the sale warrant or to that realised by the sale whichever is less or to deposit such amount in Court: Provided also that the security furnished or the deposit made as aforesaid shall be liable to be proceeded against only to the extent of the deposit or on a resale of the property already brought to sale.” (13.10.1936), (5.9.1969). (ii) In the present proviso after the word “provided” insert “further”. “Or on the ground of failure to issue notice to him as required by Rule 22 of this order.” Cancel the proviso and substitute as follows: “Provided (i) that no sale shall be set aside on the ground of such irregularity, fraud or failure unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity, fraud or failure, (ii) that no sale shall be set aside on the ground of any defect in the proclamation of sale at the instance of any person who after notice did not attend at the drawing up of the proclamation or any person in whose presence proclamation was drawn up unless objection was made by him at the time in respect of the defect relied upon.” Delhi, Himachal Pradesh and Punjab, Haryana and Chandigarh (7.4.1932).- Add the following proviso: “Provided further that no sale shall be set aside on any ground which the applicant could have put forward before the sale was conducted.” Orissa.- (1) Delete the Orissa Amendment to sub-rule (1) which was same as that of Patna since 20.3.1942, excepting Cl. (b) of the first proviso which runs as follows:— “(b) unless the applicant deposits such amount not exceeding 12+ per cent of the sum realised by the sale or such other security as the Court may in its discretion fix, unless the Court, for the reasons to he recorded, dispenses with the deposit.” (2) Sub-rule (2) be renumbered as sub-rule (4) (w.e.f. 25.5.1984) and reads as follows:— “(4) In case the application is unsuccessful the costs of the opposite party shall be a first charge upon the deposit referred to in the proviso (1), (b), if any” - [Orissa Gaz., 25.5.1984, Pt. Ill-A. p.69].
Patna.- Substitute the following for proviso to sub-rule (1) :— “Provided that no application to set aside the sale shall be admitted — (a) upon any ground which could have been put was not put forward by the applicant before the sale was concluded. (b) unless the applicant deposits such sum not exceeding 12+ per cent of the amount realised by the sale or such other security as the Court may in its discretion fix, unless the Court, for reasons to be recorded, dispense with the deposit: Provided further that no sale shall be set aside on the ground of irregularity or fraud in less upon the [acts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.” Add the following as sub-rule (2): “(2) In case the applicant is unsuccessful the case of the party shall be a first charge upon the deposit referred to in proviso (b), if any.”
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